United States District Court, D. Utah, Central Division
HAROLD V. ROBINSON, Plaintiff,
THOMAS E. BRANDON, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and JEFF SESSIONS, in his official capacity as Attorney General of the United States Defendants.
BENSON DISTRICT JUDGE
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS'
MOTION TO DISMISS
J. FURSE UNITED STATES MAGISTRATE JUDGE
Thomas E. Brandon and Jeff Sessions (collectively, “the
Federal Defendants”) move the Court to dismiss pro se
Plaintiff Harold V. Robinson's Second Amended Complaint.
The Federal Defendants argue Mr. Robinson's Substantive
Due Process claims under the Fifth Amendment fail to state a
claim because only the Second Amendment guarantees the right
to self-defense. (Mot. To Dismiss (“Mot.”), 4-5,
ECF No. 41.) The Federal Defendants further contend that this
Court should not grant Mr. Robinson leave to amend his claims
to plead under the Second Amendment because Mr. Robinson
intentionally waived his Second Amendment claims and
amendment would prove futile. (Id. at 5-10.) After
considering the parties' briefing, oral argument,
the applicable law, the undersigned agrees and RECOMMENDS the
District Judge DISMISS Mr. Robinson's Substantive Due
Process Claims against the Federal Defendants because only
the Second Amendment guarantees the right to bear arms for
self-defense. The undersigned further RECOMMENDS the District
Judge DISMISS Mr. Robinson's action with prejudice
because he voluntarily and intentionally waived his Second
AND PROCEDURAL HISTORY
February 24, 2016, Mr. Robinson filed his Complaint against
the Federal Defendants alleging that 18 U.S.C. §
922(g)(1) (“The Gun Control Act”) violated his
Second Amendment right to keep and bear arms. (Compl. ¶
37, ECF No. 3.) The Federal Defendants filed a Motion to
Dismiss Mr. Robinson's Complaint for failure to state a
claim upon which this Court can grant relief. (Mot. to
Dismiss, ECF No. 7.) After the parties had an opportunity to
respond to the Federal Defendants' Motion to Dismiss, Mr.
Robinson filed a Motion to Amend his Complaint. (Request for
Leave to Amend Compl., ECF No. 12.) On March 24, 2017, the
Court granted Mr. Robinson's Motion to Amend. (Mem.
Decision & Order Granting Pl.'s Mot. to Amend, ECF
No. 16.) On April 10, 2017, Mr. Robinson filed his First
Amended Complaint where he again alleged that the Gun Control
Act as applied to him violated his Second Amendment rights.
(Am. Compl. ¶¶ 76-78, ECF No. 18.) On September 19,
2017, Mr. Robinson moved for leave to file a second Amended
Complaint in which he replaced his Second Amendment claims
with two claims under the Substantive Due Process Clause of
the Fifth Amendment. (Mot. for Leave to File 2d Am. Compl.
(“Mot. for Leave”), 4-5, ECF No. 37.) On October
20, 2017, the Court granted Mr. Robinson's Motion.
(Docket Text Order Granting Mot. for Leave, ECF No. 39.) On
November 15, 2017, Mr. Robinson filed his Second Amended
Complaint, which the Federal Defendants now seek to dismiss
for failure to state a claim upon which this Court can grant
Court takes “as true all well-pled (that is, plausible,
non-conclusory, and non-speculative) facts alleged in
plaintiffs' complaint.” Dudnikov v. Chalk &
Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th
Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
September 2001, at the age of nineteen, Mr. Robinson pled
guilty to possession of a shotgun with a barrel less than
eighteen inches as defined by 26 U.S.C. § 5845(a)(1) and
in violation of 26 U.S.C. § 5861(d). (2d Am. Compl.
¶ 8, ECF No. 40.) The crime carries a potential term of
incarceration greater than one year (id. at ¶
21), however, Mr. Robinson received forty-two months of
probation, which he fully satisfied “and the case is
closed.” (Id. at ¶ 8.)
Robinson alleges he would like to acquire a firearm for
purposes of exercising his right to self-defense.
(Id. at ¶ 4). In or around February 2014, Mr.
Robinson met with a Federal Firearms License (FFL) Dealer to
purchase a gun. (Id. at ¶ 20.) Mr. Robinson
disclosed that he had a felony conviction, and the dealer
informed him that he could not purchase a firearm because of
his conviction. (Id.) Mr. Robinson asks the Court to
declare the Gun Control Act unconstitutional as applied to
him because the Act allegedly “violate[s] [his]
fundamental liberty right of personal security and safety
secured by the Substantive Due Process Clause of the Fifth
Amendment to the U.S. Constitution.” (Id. at
¶ 48.) Mr. Robinson also seeks a permanent injunction
against the Federal Defendants, enjoining them “from
enforcing 18 U.S.C. 922(g)(1) against [him]; from denying him
lawfully possessing and using lawful firearms for lawful
self-defense; and … from enforcing their Regulatory
Scheme in a manner as to deny or disparage [him] from
commercially purchasing lawful firearms … in the same
manner as any typical law-abiding responsible American
citizen.” (Demand for Relief ¶ 2, ECF No. 40.)
Robinson proceeds pro se, in forma pauperis in this
action. The Court construes pro se pleadings
liberally and holds them to a “less stringent
standard.” Smith v. United States, 561 F.3d
1090, 1096 (10th Cir. 2009) (quoting Garrett v. Selby,
Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (internal quotation omitted)). However, the Court
cannot act as an advocate for a pro se litigant, who must
comply with the fundamental requirements of the Rules.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007) (“[T]his court has repeatedly insisted that pro
se parties follow the same rules of procedure that govern
other litigants.”) (quoting Garrett, 425 F.3d
at 840). A pro se plaintiff's claims should survive a
Rule 12(b)(6) motion, “despite the plaintiff's
failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading
requirements.” Smith, 561 F.3d at 1096
(quoting Hall, 935 F.2d at 1110).
The Substantive Due Process Claims Fail Because Only the
Second Amendment Recognizes a Cognizable Right to Self
Robinson alleges the Gun Control Act
violates his fundamental, inherent right of self-defense
secured by the Substantive Due Process Clause of the Fifth
Amendment to the U.S. Constitution because the denial of
lawful firearms and ammunition possession and usage while
living in society are so severe that they completely
eliminate his right to lawfully repel force by ...